Access to Lawyer in Police Custody
Taylor & Kelly were instructed by JUSTICE, an independent organisation committed to law reform and improvement in human rights awareness, to act on their behalf as Interveners before the United Kingdom Supreme Court in the case of Cadder v HM Advocate.
This case concerned the rights of detainees or suspects to legal advice prior to or at interview with the police. Previous understanding of Section 14 and 15 of the Criminal Procedure (Scotland) Act 1995 was that for the length of detention (pre-arrest) up to 6 hours, police officers could, with impunity, deny access of a suspect to a lawyer and vice versa.
The case of Salduz v. Turkey represented a development of the law and an understanding of the application of Article 6(3)(c) of the European Convention on Human Rights. This provides for certain minimum rights for those charged with criminal offences including the right:
“c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”
In the Salduz case, a Grand Chamber decision of the European Court of Human Rights it was held that “as a rule” suspects should be entitled to legal advice from the point of their detention.
In Scotland this sparked many challenges to the denial of that right. In the case of McLean v HM Advocate, Seven Lords Commissioners of Justiciary sat in the Appeal Court to determine upon the application of that case to Scots Law. They unanimously held that Scots Law was impervious to this declaration. The High Court of Justiciary severely circumscribed the scope of that decision and upheld the limited rights of suspects.
The Thomson Committee on Criminal Procedure in Scotland (Cmnd.6218, October 1975) had recommended (with little explicit reasoning in support) the exclusion of lawyers from the police station at this most important time.
They described the configuration of various interests as difficult but in their assessment expressed concern about “creating a situation in which criminals can render the investigation of their crimes difficult or even impossible merely by standing on their rights.” (para.2.03)
The recommendation against lawyers being granted access to provide advice to suspects is contained in para. 5.08:
…whereas the arrestee will be entitled to an interview with his solicitor in the police station, the detainee’s right will be confined to having his solicitor advised that he has been detained. It will be a matter of police discretion whether to allow the detainee an interview with his solicitor. We consider that such a discretion is necessary at the stage of investigation prior to arrest.
In para.7.16 this is repeated:
Presence of a solicitor
7.16 Although a person who has been charged with an offence is entitled to an interview with a solicitor, we recommend that a solicitor should not be permitted to intervene in police investigations before charge. The purpose of the interrogation is to obtain from the suspect such information as he may possess regarding the offence, and this purpose might be defeated by the participation of his solicitor.
The High Court of Justiciary in the case of McLean held that the imprimatur of the legislature in enacting Sections 2 and 3 of the Criminal Justice (Scotland) Act 1980 (the predecessors of Sections 14 and 15) was to be given considerable deference.
Coming after the case of McLean, Mr Cadder’s appeal was refused leave of the High Court to proceed. An application to review that refusal of leave was itself denied. His application for leave to appeal to the United Kingdom Supreme Court was not given a hearing. He applied direct to the United Kingdom Supreme Court.
On 24th, 25th and 26th May 2010, Seven Justices of the United Kingdom Supreme Court convened to hear Mr Cadder’s appeal and determine upon the Convention compatibility of the exclusion of solicitors by the police to detainees at the outset of their detention. Their decision is expected in October 2010.
On behalf of JUSTICE the written intervention was supported with oral submissions in the course of the appeal and concentrated upon:
- The decision of the European Court of Human Rights Grand Chamber in Salduz v. Turkey.
- A comparative survey of other countries in Europe on the right to legal representation at, or prior to, police interview.
- A comparative study of other English speaking jurisdictions.
- A survey of that right (to legal representation at the outset of detention) within the international community.
- A comparison between the work of the Thomson Committee on Criminal Procedure in Scotland (Cmnd.6218, October 1975) with the report of the Royal Commission on Criminal Procedure in England and Wales (Cmnd.8092, 1981).
- The remedies which could be afforded by the United Kingdom Supreme Court following upon a finding of Convention incompatibility.
JUSTICE has recently published the written intervention which can be read here.
Read the article by Jodie Blackstock, barrister and senior legal officer in EU and Home Affairs and Justice in Guardian Law 23rd May 2010 here.
Read the report of the Supreme Court proceedings in the Herald 24th May 2010 here and in the Sunday Herald on 20th June 2010 here
Crown Office are reported to have issued guidlines to police in anticipation of the ruling going against it. Read The Herald here.
BBC News here
and the Sunday Herald here
Read the interim guidelines published by the Lord Advocate to Chief Constables here
